Judge rules Nebraska execution will go forward

Aug. 10 (UPI) -- A federal judge ruled Friday that Nebraska may go ahead with its first execution in more than 20 years, despite a drug company's assertion that the state illegally obtained its drugs.

U.S. District Judge Richard G. Kopf denied drug manufacturing company Fresenius Kabi's motion to halt the execution of Carey Dean Moore on the grounds that the use of its drugs would injure the company's reputation.

Attorneys for Fresenius Kabi immediately appealed the decision.

"Decades have slipped by since Mr. Moore was sentenced to death," Kopf wrote in his order. "The people of Nebraska have spoken. Any delay now is tantamount to nullifying Nebraska law."

Nebraska intends to execute Moore on Tuesday using a combination of drugs never before used in a lethal injection.

In its lawsuit, Fresenius Kabi said it manufactured two of the drugs Nebraska will use -- cisatracurium, a paralytic, and potassium chloride, which stops the heart. An inventory of the drugs Nebraska intends to use to kill Moore include several 30ml vials of potassium chloride. Fresenius Kabi is the only company to sell vials of that size, it said.

The company's policy restricts the sale of its drugs to correctional facilities, and also prohibits its distributors and wholesalers from doing so.

"We made no sales to the Department of Correctional Services, nor have any of our authorized distributors," the company said in a statement. "So we can only conclude Nebraska may have acquired this product from an unauthorized seller."

Nebraska will not say where it obtained its lethal injection drugs, though it testified that the drugs were purchased at a "licensed pharmacy," and that it "did not engage in any measures to circumvent Fresenius Kabi's distribution control."

What's more, if the judge stopped the state from using these drugs, it's unlikely it would be able to execute Moore.

"Lethal substances used in a lethal injection execution are difficult, if nearly impossible, to obtain," the state's motion said. "In search of substances to be administered for execution by lethal injection, the director contacted at least 40 potential suppliers and six other states. Only the current supplier was willing to provide substances to be administered by lethal injection."

That pharmacy will not sell the state any more drugs.

Moore was sentenced to death for the 1979 murders of two cab drivers. He has stopped fighting the state's attempts to execute him.

"Mr. Moore wants his death sentence to be carried out, and he has directed his court-appointed lawyers to do nothing," Kopf wrote. "Indeed, Mr. Moore has sought to have his lawyers dismissed. There is absolutely no doubt of his competence or his guilt. I will not allow the plaintiff to frustrate Mr. Moore and the laws of the state of Nebraska by plaintiff's last-minute lawsuit."